Employment Law FAQs

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Is a worker an Employee or Self-Employed?
The difference between being an employee or self-employed will affect that person's employment rights. In deciding this question the law considers these factors, the following would indicate that a person is an employee (and not self-employed):
 
The person is required to work regularly.
 
They are required to work a minimum number of hours and are paid for those hours.
 
The employer, (usually through a manager or supervisor) is in charge of their workload, and how the work should be undertaken and where it should be done.
 
The employer provides the necessary tools, materials, equipment and infrastructure for the work done.
 
The person (employee) must turn up for work and cannot send another person, so they cannot sub-contract the work.
 
The employer deducts tax and National Insurance contributions from the person's pay, so they are paid net.
 
The person receives holiday pay.
 
The person receives or is entitled to other employment benefits & protections, such as sick pay, maternity pay or paternity pay - whether this is the statutory minimum or a more generous contractual entitlement.
 
There is pension scheme, and the person can join it.
 
They are subject to and bound by the employer's grievance & disciplinary procedures. This can also include confidentiality and restrictive covenant clauses in their contract. Also where they are subject to the employer's redundancy procedures, such as selection and payments.
 
Where the employer is taking the financial risk.
 
Finally, where the person/employee has been given an initial offer letter setting out their basic terms, (hours, pay, etc.). Or has been given a written employment contract or a written statement of terms. This is the last item on the list, simply because a significant minority of employers still do not issue formal written employment contracts - despite the legal risk, this exposes them to. If the person benefits from (and is subject to the above), they are more likely to be employed, rather than self-employed - despite what the employer may contend.
 
What information must an Employer give to an Employee when they start?
The employer by law has to give an employee a "statement" of employment, within two months of the employee starting work.
 
This covers what would normally be in a Contract of Employment. However, this is not a contract between the employer and the employee.
 
If there is a dispute and the employer has not given the employee a contract, the court may use the terms in the statement to decide the terms of employment.
 
If no statement has been given within two months, an employee can apply to an Employment Tribunal at any time after the two month period, (or within three months of termination of the employment) for the tribunal to determine what should have been in the statement.
 
What should be in an employment statement?
The employer must include the following terms in an employment statement:
 

1. Names of the Employer & Employee.

2. Date the employment started, including any periods of continuous employment with a previous employer, where the previous employer was taken over by the new employer.

3. Pay, including the employee's scale of pay and how it is calculated.

4. When the employee is paid (weekly, fortnightly or monthly).

5. Hours of work and terms related to the employee's hours (for example if the employee works shifts or overtime).

6. Holidays (how much, when and whether the employee will get holiday pay).

7. Sickness procedure and entitlements.

8. Pension Scheme details.

9. Notice period.

10. Job Title and description of the job.

11. Where the employee is expected to work.

12. Any collective agreements which directly affect the terms and conditions of employment.

13. Details of work abroad, if it is for longer than one month.

14. The length of the contract, if the employee has been employed on a fixed term contract.

15. Disciplinary Rules and Complaints Procedure.

 
What happens if the employer decides to change the employment statement?
The employer must tell the employee of any changes as soon as possible. The law states that this must be within one month of the change.
 
Should an employer give an employee a written contract?
An employer does not have to give the employee a written contract or if they do it may not necessarily cover all the details of their employment. However, an employee is entitled to an employment statement.
 
If an employee does not have a contract what are the terms of their employment?
If there is a dispute, the court will decide what the actual terms are by looking at all the other documents and evidence. The terms will then usually be what is in the employee's "statement" given to them by the employer. Other sources of terms that a court may say are part of the contract are as follows:
 

a) The letter the employer sent offering the job (if one was sent). These letters often contain important information about the terms if the job is accepted.

b) Terms agreed between the employer and any Trade Union that represents the workforce. This includes local and national agreements made between employers and Trade Unions.

c) Any terms stated in an advertisement for the job.

d) The employer's works rules and staff handbook, this includes rules placed on the staff noticeboard by the employer.

e) Spoken agreements between the employer and all the employees or individual employees.

 
What obligations/duties does the employee owe to their employer?
These may be explained in the contract of employment, but the law also says that there are certain obligations and duties owed by an employee to their employer, even if the contract does not mention them. These include:
 

1. To do what a reasonable employee would do in any situation.

2. Duty to be honest.

3. Not to disrupt business, for example, taking part in industrial action.

4. Disclose wrongdoing (does not include "spent" convictions). But, the employee must disclose wrongdoing by other employees, even if this will incriminate them.

5. Carry out and follow orders of the employer, (as long as they are legal).

6. Not to disclose the employer's confidential information.

7. Work with reasonable care and skill.

8. Look after the employer's property if using it.

9. Not to compete in business against the employer while still working for them as an employee.

10. Not to take bribes.

11. Be prepared to change when the job changes, for example, if computers or other machinery are introduced to help the employee do their job.

12. Give any inventions to the employer if these are developed by the employee during their employment.

 
What obligations/duties does the employer owe to the employee?
An employer owes their employee the following duties, which again can be implied by the law or may be found in the employment contract.

1. Duty to pay the employee the agreed amount if the employee arrives for work and can work.

2. Provide the employee with work to do, (this is limited). However, for example, if the employee is paid by commission and the employer does not give the employee any work or if not working could damage the employee's reputation, for example, if you are a senior executive in a company. Then the employer may have broken their duty to the employee.

3. Observe Health & Safety Regulations.

4. Give employees correct information about rights under their contract.

5. Give employees reasonable opportunity to have their complaints looked at.

6. There is no duty to provide references to an employee, (except where the reference is required by the Financial Conduct Authority). However, if a reference is provided by the employer, the employer owes a duty to the employee to make sure the reference is completed with reasonable skill and care and is true, accurate and fair. The employer also owes a duty to the receiver of the reference not to make any negligent statements about the employee.

7. The employer and employee also owe each other a duty of "Mutual Trust & Confidence", basically they must show respect for each other.

Examples of breaches:

  • Harassing or victimising employees, particularly in front of other employees who are less senior than the victim.
  • Physical violence by the employer or employee.
  • Theft by employee.

8. There is no duty to pay Contractual Sick Pay.

9. There is an obligation on an employer to pay statutory sick pay for the first 28 weeks an employee is absent due to sickness in any period of 3 years. If an employee is eligible.

10. Employees entitled to at least four weeks holiday in any one year period.

 
What are the employee's rights to notice before dismissal?
This will usually be explained in the contract. If it is not or if the employee does not have a contract the law says that:
 

a) An employee is entitled to a minimum of 1 weeks' notice of dismissal if they have worked continuously for one month, but less than two years.

b) After two years' employment, a further one weeks' notice is required for each whole year of continuous employment.

This carries on with one weeks' notice for every year up to 12 years. This is the maximum under employment law, no matter how many years an employee works over 12 years this is what the law states as the maximum notice period. It is important to remember that this is the minimum protection only, the employee's contract might allow a longer period of notice.
 
Can an employee bring a claim for both?
Yes. However, there will be an overlap in some of the compensation. Usually, the compensation under Wrongful Dismissal will cancel out the Unfair Dismissal Compensation. For detailed information on compensation see: Unfair Dismissal Compensation and Wrongful Dismissal Damages
 
What are an employee's maternity rights?
An employer cannot dismiss an employee because she is pregnant, it does not matter if the employee does not have two years' continuous employment with the employer. The dismissal will be automatically unfair.
 

1. A pregnant employee is entitled to Maternity Leave without having worked for two years. Ordinary maternity leave is 26 weeks.

They also have a right to Additional Maternity Leave. This starts at the end of the Ordinary Maternity Leave period and lasts for 26 weeks.

2. A pregnant employee also has the right to Maternity Pay, if she has worked for 26 weeks or more.

The 26 weeks is counted from 15 weeks before the week the baby is due.

So take the week that the baby is due and count back 15 weeks.

If an employee has worked for 26 weeks at that stage, the employee can claim Maternity Pay; this is paid for 39 weeks.

3. Right to same contractual terms while off work (except same pay).

4. Right to paid leave for antenatal care.

5. Right to return to work under the same contractual conditions after ordinary maternity leave and a comparable position after additional maternity leave.

6. The employee should be offered alternative work (if it is available) if the pregnancy means they cannot do the work they are normally employed to do.

 
What are an employee's rights under Sex and Race Discrimination law?
An employer is not allowed to discriminate on the following grounds:
 

1. Sex of employee or prospective employee.

2. Marital status of an employee or prospective employee.

3. If an employee intends to undergo, is undergoing or has undergone gender reassignment.

4. Race, (this means colour, race, nationality or ethnic origins) of the employee or prospective employee.

5. Also, an employer cannot victimise an employee for bringing a complaint about discrimination or giving evidence in a complaint brought by another employee.

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